Should the Heads of Government meeting be moved to a different country?
Sir Ronald Sanders
There are many reasons why a government would want to host a Commonwealth Heads of Government Meeting (CHOGM). Among them is the badge of honour and respectability that would be bestowed upon the government by the governments of the other 53-member states of the Commonwealth. Another reason is that the Head of Government of the host state would become the Chair-in-Office of the Commonwealth for two years and would benefit politically from being the face of the Commonwealth in the international community.
A third reason is the spin-off effects of knowledge of, and investment in, the country that media attention to CHOGM could engender. However, the most important reason of all is that the interests of the Commonwealth as a whole are served by the venue in which the CHOGM is held.
If the latter reason were a consideration in the collective mind of the Sri Lankan government, President Rajapaksa should have withdrawn the offer to host the CHOGM while controversy still rages over its human rights practices and its regard for the rule of law. But he has not done so. Instead, his government has insisted that the Commonwealth Summit must be held in Sri Lanka. By this insistence, the Sri Lankan government shows no concern for the credibility of the Commonwealth.
This obdurate position by the Sri Lankan government, even as the United Nations Human Rights Commission (UNHRC) has already strongly criticised its human rights record and is likely to do even more sharply before the CHOGM is held, has caused many Commonwealth governments either to call for the venue of the meeting to be changed, or to indicate that they will not attend the meeting.
Despite the arguments of the Sri Lankan government, the evidence of its violation of declared and agreed Commonwealth values has been well documented. There is sufficient cause for Sri Lanka to be considered by the Commonwealth Ministerial Action Group (CMAG) for “serious and persistent violations” of Commonwealth values.
The Sri Lankan government has said that such a development would be contrary to CMAG rules. This is not so. At Perth in 2011, Commonwealth leaders, including President Rajapaksa, agreed to an expanded mandate for CMAG, which said that the group needed to be more proactive.
Therefore, CMAG has not only the responsibility, but also the obligation, to tackle the full range of serious or persistent violations of Commonwealth values, including the Latimer House Principles which state: “Judiciaries and parliaments should fulfill their respective but critical roles in the promotion of the rule of law in a complementary and constructive manner; Interaction, if any, between the executive and the judiciary should not compromise judicial independence; and Judges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties.”
In this context, President Rajapaksa’s dismissal of the country’s Chief Justice, Shirani Bandaranayake, after a wholly unfair impeachment process that was ruled illegal by the Supreme Court, and the appointment of his former Attorney-General to the post, is “serious” and it comes amid “persistent” evidence of human rights abuses of journalists, and other groups within Sri Lanka. The government has failed to act on an assurance to transfer significant powers to elected regional councils, to give the island’s Tamil minority some autonomy. These developments follow the government’s refusal to allow an independent inquiry into the deaths of tens of thousands of Tamil civilians in 2009 towards the end of the conflict between government forces and the Tamil Tigers.
The new CMAG mandate also allows for a process by which the Commonwealth Secretary-General would use his Good Offices to engage a country of concern before that country is placed on CMAG’s agenda.
According to the Sri Lankan Foreign Minister, this process is not yet exhausted and there is a timeline after such exhaustion for a country to be put before CMAG. It is a flimsy contention. The Secretary-General has used his Good Offices and has issued a series of statements expressing deep disappointment over the dismissal of the Chief Justice and his concern for the present “constitutional impasse” in Sri Lanka. In clinging to a timeline provision after the Good Offices role is pronounced to be exhausted, the Sri Lankan government is clutching at a technical straw that is too thin and fragile to shroud the wider and stronger issues.
The Sri Lankan government would be regarded much more sympathetically and helpfully if it were to put the Commonwealth’s interests first by now withdrawing Sri Lanka as the CHOGM venue, and agreeing to engage constructively with CMAG in addressing the democratic problems that now plague the country.
Governments in many countries have constitutional powers to remove judges in extreme circumstances. Sri Lanka is no different
Neville de Silva
Sri Lanka’s impeachment of its Chief Justice prompted Canada to call for the Commonwealth Ministerial Action Group (CMAG) to discuss Sri Lanka at its next meeting in London in April, according to Hugh Segal, Canada’s Special Envoy to the Commonwealth.
Since Canada initiated the move, the views of Segal, as his country’s special envoy, merit attention. Interestingly, while Segal mentions the impeachment, he avoids saying why that should be the casus belli for the Canadian intervention, though he does make a passing reference to judicial independence.
If it is suggested by Mr Segal, and other like-minded persons, that the impeachment of a chief justice or other superior court judge somehow militates against judicial independence, then one is compelled to ask why so many countries within and outside the Commonwealth have provision for the removal of such senior judges who only hold office during good behaviour.
If many countries have such constitutional provisions for the removal of judges, and acts of removals are conducted in keeping with those constitutional provisions, then surely such countries do not deem this as damaging judicial independence.
In impeaching the chief justice, did the Sri Lankan parliament act outside the constitution, did it exceed its powers and usurp the powers of the judiciary or any other arm of the state?
Article 4 of the Constitution of Sri Lanka recognises the doctrine relating to the separation of powers. There are powers and responsibilities given to the legislature, executive and judiciary. One thing is abundantly clear – the responsibility of impeaching judges of the superior courts lies with the legislature and not the judiciary. It is so in the United States, the United Kingdom, Australia, Sri Lanka and other non-Commonwealth states, following a time-honoured British practice.
Some have claimed that Sri Lanka has violated the Latimer House principles, which articulate the separation of powers and underscore the need to preserve the independence of the judiciary, among other matters.
The Latimer House principles were ratified in 1998. With regard to its guidelines on Parliamentary Supremacy and Judicial Independence, this is what is said about the procedure to remove judges: “In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and be judged by an independent and impartial tribunal.”
Seven years later the UK, where the Commonwealth is headquartered and whose head of state is also the head of the Commonwealth, passed the British Constitutional Reform Act (2005). A radical aspect of this reform was the creation of a 12-member Supreme Court as the highest court in Britain functioning outside the House of Lords, thus breaking with centuries of British tradition.
Article 33 of this act said how these judges could be removed. “A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.” This procedure follows the practice Britain has adopted for decades and there is no mention of an “impartial tribunal”, as required by Latimer House. Where Britain applies the Latimer House principles, it is to the lower judiciary and not the highest court.
In Australia, despite the recently passed Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act of 2012, Article 72 (11) of the Australian Constitution still holds that judges of the highest court can be removed by addresses to both houses of parliament. No Latimer House principles there!
The space allotted does not permit me to quote in full the provisions of the Sri Lankan Constitution under which the impeachment process was conducted. Suffice it to say that as in the US, UK, Australia and others, the Sri Lankan parliament drew its power and responsibility from Article 107, 107(2) and 107 (3) of the Constitution. There was no impropriety in the application of the constitutional provisions nor has the constitution been violated. Is Sri Lanka then to be chastised for its strict adherence to its constitution?
Previously CMAG has been activated for violating constitutions and overthrowing democratically elected governments, not for abiding by constitutions. Those who criticise Sri Lanka might profitably learn from the proceedings of the 1933 impeachment trial of Federal Judge Ritter in the US and what was said then about impeachment hearings.
